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The Aristocrats!

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Lisa Blatt for petitioner

Sure, Lisa Blatt’s op-ed defending her good friend Brett Kavanaugh was an intelligence-insulting disgrace. But you peons fail to understand that she’s playing a long game for Liberal Feminism (TM). For example, a little backscratching on the front end and she might get a sympathetic hearing for progressive causes like [checks notes] helping massive corporate polluters avoid liability in state court:

For decades, the Anaconda Smelter refined copper ore in southwestern Montana. The smelter provided copper for use in phone wires and power lines, but it was also a major polluter, spewing tons of arsenic and lead into the surrounding area. Atlantic Richfield Co., which owned the smelter when it shut down in 1980, has spent nearly a half-billion dollars cleaning up the hazardous waste created by the smelter, following a plan created by the federal Environmental Protection Agency. Landowners in the area want the company to go further and restore their property to its original condition, but Atlantic Richfield argues that their claims are trumped by the Comprehensive Environmental Response, Compensation, and Liability Act, the federal law that Congress enacted nearly 40 years ago to manage and clean up hazardous-waste sites. The Montana Supreme Court allowed the landowners’ claims to go forward, and this morning the U.S. Supreme Court heard oral argument in the dispute.

Arguing on behalf of Atlantic Richfield, lawyer Lisa Blatt framed the question before the Supreme Court as whether “hundreds of thousands of landowners” would be able to implement their “own piecemeal hazardous-waste cleanups.” It is “profoundly wrong,” Blatt told the justices, to assume that it is always better to remove hazardous waste than to leave it in place, and the EPA – rather than “jurors on an ad hoc basis” – should be responsible for evaluating the risks of leaving such waste where it is.

Blatt faced a flurry of questions from the court’s more liberal justices. Justice Sonia Sotomayor asked whether CERCLA would allow a state court to order a remedial plan that supplements, rather than conflicts with, the remedy that EPA had ordered.

Using a phrase that would surface again and again throughout the argument, Blatt stressed that an EPA-ordered remedial plan under CERCLA imposes both a floor – a minimum level of remedial action – and a ceiling – a maximum level. But what if I think that there is only a floor, Sotomayor countered, and that the EPA has the power to decide whether any plan can supplement the EPA’s own plan?

Blatt responded that the EPA would have to change the law to approve a supplement to its own plan. Justice Ruth Bader Ginsburg disagreed, telling Blatt that it “isn’t the law” but instead just “the Superfund plan for this site.” If the EPA wanted to allow the landowners to go forward with an additional cleanup, Ginsburg suggested, that approach wouldn’t be trumped by CERCLA.

The good news for Blatt is that thanks to people like Kavanaugh her arguments don’t have to be good for the kind of plaintiffs she generally represents to win. Anyway, looking forward to seeing Elite Credentials Blatt join Meritocracy Chua-Rubenfeld in the O’Kavanaugh chambers in the next few years. And, hey, at least Blatt is clearing major profits by being a shill; Johnathan Turley just seems to like the attention.


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